HKSAR v. Harpal Singh and Another

CACC 269/2017

[2019] HKCA 1439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 269 OF 2017

(ON APPEAL FROM DCCC NOS 1018 & 1027 OF 2016)

_______________

_______________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.The applicants, whom we shall refer to by their trial designations as D1 and D2, renewed their respective application for leave to appeal against conviction after it had been refused by Macrae VP on 13 March 2019.  Both applicants had previously filed on 29 August 2017 a notice for leave to appeal against conviction only.  The applicants appeared before us in person, having had their applications for legal aid refused.  At the conclusion of the renewal hearing, we refused the applicants leave to appeal against conviction and dismissed their appeals, indicating that we would hand down our reasons for doing so in due course.  These are our reasons.

2.By a consolidated charge sheet, D1 and D2 faced a joint charge of blackmailing another person, who was designated as X at trial (PW1), on 15 June 2016, contrary to section 23(1) and (3) of the Theft Ordinance, Cap 210 (Charge 1).  D1 faced an additional charge of blackmailing the same person on 16 June 2016 (Charge 2).

3.On 17 July 2017, following a trial before Deputy Judge Wan in the District Court, D1 and D2 were convicted on Charge 1, while D1 was additionally convicted on Charge 2.  On 16 August 2017, they were each sentenced by the judge to an overall term of 3 years’ imprisonment.

The history of the appeal

4.There is a lamentable history to this case of repeated failure to comply with court directions, which was unveiled by Macrae VP in his judgment when refusing the applicants leave to appeal against conviction.

5.The applicants, in their respective applications to appeal against conviction, set out similar grounds of appeal.  In general terms, they complained that the judge was wrong to accept the evidence of PW1; PW1’s evidence was either unsupported or contradicted by other evidence; the judge failed to properly evaluate the evidence in relation to the charges they faced; and their respective counsel did not properly defend them at trial.  They were granted legal aid on 15 November 2017 and assigned legal representation which they changed on several occasions.  During this period, the applicants failed to comply with repeated requests from the court to file perfected grounds of appeal.  This had grave consequences in various respects, but particularly because the applicants had made general complaints about their counsel at trial who needed to be notified in a timely manner of the specific allegations against them so that they could respond accordingly.

6.At the end of May 2018, legal aid was withdrawn from D1, while legal aid for D2 was assigned to a new counsel, Mr James McGowan. Eventually, perfected grounds of appeal dated 28 June 2018 were filed on 4 July 2018 by D2, which were later amended on 19 September 2018.  D1, however, did not file any perfected grounds of appeal but on 2 January 2019 he was granted legal aid and Mr McGowan was assigned to represent him.  Throughout this period, there were a series of case management directions from the court which had not been complied with by the parties.  

7.As a result, a directions hearing was held on 18 January 2019 before Macrae VP, at which Mr McGowan appeared on behalf of both applicants.  Macrae VP fixed a hearing for the leave application on 6 March 2019, and he directed that Mr McGowan, on behalf of the applicants, file re-amended perfected grounds of appeal and written submissions, which he did on 13 February 2019.  By this stage, the applicants had served their sentences with D1 and D2 discharged from prison custody on 5 July 2018 and 15 August 2018, respectively.[1]

8.At the leave hearing, Mr McGowan advanced nine grounds of appeal on behalf of both applicants, and also sought to adduce fresh evidence.  In his comprehensive judgment handed down on 13 March 2019, Macrae VP noted that the applicants essentially sought to have the case reheard and retried with little or no justification, and that the ground alleging flagrant incompetence of counsel was without substance.

9.D1 and D2 each renewed their leave application in person on 25 and 22 March 2019 respectively, both having had legal aid discharged on 22 March 2019. 

10.Macrae VP issued a direction on 20 May 2019 that the applicants should indicate within 14 days on which grounds they sought to renew their respective applications.  By notice dated 3 June 2019, the applicants were informed that the renewal of their leave applications were fixed for hearing on 17 December 2019.  They did not comply with the direction of Macrae VP, requesting time to consider their position and obtain legal representation. 

11.Eventually, D2, in a letter received by the court on 5 September 2019, listed nine grounds of appeal which were essentially the same grounds that were advanced on his behalf at the leave hearing.  D2 wrote a further letter on his and D1’s behalf, which was received by the court on 3 December 2019, seeking an adjournment of the renewal hearing because he was awaiting the outcome of a further application for legal aid.  Attached to the letter was a 27-page written submission, together with a bundle of various documents and statements relating to their case.  On 10 December 2019, legal aid was refused to the applicants, and by a direction of the court dated 11 December 2019, the application for an adjournment of the renewal hearing was refused.

12.That sets out a brief history of the case.  We now turn to consider the renewed grounds of appeal, but before we do so, it is necessary to provide a comprehensive overview of the case at trial in order to address the myriad of complaints submitted by the applicants.

The case at trial

13.The victim of the two blackmail offences was PW1, a Pakistani national, who settled in Hong Kong in 1998 and operated a restaurant and a mobile telephone shop.  The blackmailers were D1 and D2, both Indian nationals, who were torture claimants and Form 8 recognizance holders.[2]

14.The prosecution case was that on 15 June 2016, D1 and D2 blackmailed PW1 by making an unwarranted demand of $800,000 with menaces. PW1 testified that in the morning on that day, D2 had telephoned him asking him to go to a restaurant in Tsim Sha Tsui called “Tandoori Nights”.  PW1 was acquainted with D2 for several years.  He knew him by the name of “Janga”.  PW1 would see D2 at Chungking Mansions where PW1 operated his mobile telephone shop.

15.At about 11:30 am, PW1 arrived at the restaurant, accompanied by a friend, Yasir Hussain.  He saw D2 sitting at a table together with D1, whom he knew by the name “Happy”.  They ordered food and two or three friends of D2 came to join the lunch.  PW1 inquired of D2 as to why he had called him, to which D2 told him “Eat the food and sit with me”.  PW1 did as he was told.  PW1 believed that D2 wanted to see him because a client of PW1 had complained against D2.  After lunch, the other men left the restaurant, and D1 and D2 then in turn demanded that PW1 should give them $800,000 or else there would be trouble and his life would be in danger.  D1 and D2 said to PW1 several times that if he paid them $800,000 “then you will be safe, otherwise problem.”[3]  PW1 replied that he did not have the money to pay them, whereupon D2 hit a wine bottle on the table and pointed it at him, threatening him that he should pay the money they had demanded. PW1 felt very scared because he thought he might be assaulted.  As D1 and D2 were smoking at the time, the restaurant manager came over and asked them not to smoke in the restaurant.  D1 slapped the manager across the face, at which point PW1 tried to leave the restaurant.  D2 told PW1 to sit down, and it was only after PW1 said that he would arrange to pay them the money at a later time that they allowed him to leave.  It was about 4:30 pm when PW1 left.

16.At about 4:00 pm on the next day, PW1 and a friend, Zeshan Ali (PW2), were sitting in a restaurant known as “Hung Kee” in Chungking Mansions.[4]  D1 came into the restaurant and sat at their table.  D1 repeated to PW1 the demand for money he had made the day before.  When PW1 replied that he did not have the money, D1 became very angry and said to him: “Anything happens to you, you will be responsible.  Don’t blame us.”[5]  PW1 became very scared.  D1 was there for about 5 minutes and then left.

17.PW2 testified that he was sitting with PW1 in the “Hung Hee” restaurant at Chungking Mansions between 4:30 to 6:00 pm on 17 June 2016, which was later corrected to have been on 16 June 2016.  He said that between 4 to 6 persons arrived at the restaurant and D1, in a loud and angry voice, asked PW1 what he had done about the money.  PW1 questioned what money, to which D1 responded: “Give me $800,000.  Whatever the money I asked, give it to me and it would be better for you to give the money.  Afterwards, anything happened to you, then it will not be my responsibility and I have many people.”  When D1 was about to leave, he repeated in a very angry voice: “You pay the money.  It will not be good for you, and anything could happen to you. Give me the money, otherwise I cannot give you any guarantee. Anything can happen with you.  I can’t say anything.”[6]

18.On 18 June 2016, PW1 was seriously wounded in a knife attack at his shop, and it was after this incident that he reported the two blackmail demands to the police.[7]

19.At trial, neither D1 nor D2 elected to give evidence.  Nor did they call any witnesses in their defence.  The defence case was essentially presented through the cross-examination of PW1 and PW2, although in the case of D2, his video-recorded interview was in evidence, in which he said he did not blackmail PW1 on 15 June 2016, but agreed that he had talked to him in the restaurant.  It was alleged by the defence that PW1 and PW2 were falsely implicating D1 and D2 because D1 had given evidence at the trial of a friend and former employee of PW1 by the name of Mohammed Waheed Khan (Waheed).  It was submitted by the defence that the real purpose for PW1 meeting D1 and D2 in the restaurant on 15 June 2016 was to ask them not to further assist the police in the investigation of the case involving Waheed, and that the meeting in the restaurant the next day between D1 and PW1, at which PW2 was allegedly present, did not occur.

The cross-examination of PW1 and PW2

20.It is necessary that we provide an overview of the cross-examination of PW1 and PW2 because of the nature and variety of the complaints made by D1 and D2 in relation to their trial, which, as will become apparent, were no more than an attempt to reargue and retry their case. 

21.Before we do, we should explain that D1 and D2 mounted a joint defence against the blackmail allegations, and their respective counsel obviously worked together, focusing on particular areas when cross-examining PW1 and PW2.  The late Mr Kevin Egan, who represented D2, conducted most of the cross-examination of PW1, while Mr John Haynes, who represented D1, conducted the cross-examination of PW2. 

The cross-examination of PW1

22.PW1 was questioned about the friend who accompanied him to the Tandoori Nights restaurant.  He agreed that his friend had made a witness statement to the police but he had not read it.  He confirmed that his friend was to be a prosecution witness in the case, but he had left Hong Kong in May 2017 and returned to Pakistan.  He said he was aware that he had made a formal declaration in relation to his witness statement but had not read it.  He denied that the original witness statement made by his friend was as a result of pressure from him.[8]  

23.It was submitted by the defence that PW1 omitted to mention the blackmail incidents at the first available opportunity and accordingly his evidence was a fabrication. PW1 agreed that in his first statement taken on 25 June 2016, when he was in hospital, he mentioned the meeting with D1 and D2 at Tandoori Nights restaurant but did not say that they blackmailed him.  He also agreed that he had not initially reported the two blackmail incidents to the police, although he did later mention the incidents to the police when they came and saw him after he had been attacked.[9]  PW1 had made altogether 5 witness statements to the police.

24.As a result of the knife attack on PW1, he sustained multiple cut wounds to his body and lost both of his thumbs.  He was hospitalised and underwent two major operations on 18 and 24 June 2016.  When the police came to take the first statement from him, it was soon after his second surgery. 

25.PW1 was questioned about the contents of his first statement which was not as full and complete about the blackmail incidents as he later disclosed in his subsequent statements.  He explained that at the time, he was not well and was also very scared after he had been attacked and wounded.[10] He said his health was not good.[11]  He was not “properly conscious” as he was on medication.[12]  He denied that he was lying about the two blackmail incidents and reiterated that D1 and D2 had threatened him.[13] 

26.PW1 agreed that at the Tandoori Nights restaurant, the persons present in addition to himself and his friend, were D1, D2, and three or four others.  He said also present was “Mr Sunny Bali” and “a Chinese male”.  He was asked if there was another person by the name of “Nazim” but he did not know.  He was next asked whether the fourth person was “Tejinder Singh”, to which he explained that he did not know him but confirmed that there was another male present.[14] It was put to PW1 that the meeting was coincidental and there was no pre-arrangement.  He denied this was the case, and stated that he received a telephone call at about 11 am from D2 to go to the restaurant.  It was put to PW1 that he asked D2, D1 and Mr Bali to help solve the case of Waheed.  It was noted that Mr Bali worked for the solicitors firm that was handling the case for Waheed.[15]  PW1 rejected this suggestion and stated that after the others had left, D2 had told him that he had been involved in getting D2 into trouble, which PW1 denied.[16]

27.PW1 was queried about the scene at the restaurant.  It was established that it was late in the afternoon, during break time at the restaurant, and that they were the only ones there at the time.  It was noted by Mr Egan that the CCTV cameras displayed no acts of violence, except for the slapping of the manager.[17]

28.PW1 was questioned about his relationship with Waheed, his former employee.  It was acknowledged that Waheed had been arrested on 22 May 2016 in relation to an incident that took place on 19 May 2016.  PW1 confirmed with Mr Egan that he was very concerned about Waheed and that he contacted Mr Bali, who worked for a firm of solicitors, to assist Waheed.  At this point during cross-examination, Mr Egan informed PW1 that Mr Bali was sitting behind him in court.  This prompted the judge to inquire of Mr Egan as to whether he intended to call Mr Bali as a witness.  Mr Egan said that the matter had been considered, but it had been decided not to call him.[18]  It is to be noted that this was said in open court in the presence of D2.  Clearly, a decision had been made by the defence not to call Mr Bali as a witness.  This was one of the matters complained about by the applicants. It was confirmed with PW1 that Mr Bali was present at the lunch with D1 and D2, together with others, although PW1 said Mr Bali came afterwards.

29.PW1 was extensively examined about the telephone calls he had with Mr Bali from 10 to 17 June 2016, as well as the ones he had with D2.  He did not remember the nature and the contents of the various calls, listed on the record of his mobile telephone.  He was referred to a telephone call from D2 at 11:23 am on 15 June 2016, and it was suggested that he called D2 to invite D2 to join him and his friends at the Tandoori Nights restaurant, having cancelled a booking at another restaurant by the name of Spice Indian restaurant.  He denied this was the case and insisted that D2 had told him to go to Tandoori Nights restaurant.  At this point, PW1’s mobile telephone was arranged to be examined, which showed that Mr Bali’s telephone number was recorded in his list of contacts, as was D2’s telephone number under the name of “Janga Boss”.  He was questioned about the telephone calls that he had with Mr Bali and D2, and the timing of them.  PW1 could not remember the nature of the calls and what was discussed.  This included a telephone call from D2 to PW1 in the evening on 17 June 2016, and two calls that he made to D2 thereafter.[19]

30.PW1 confirmed that Waheed worked for him for two to three months and that he supported an application for him to bring his wife and children to Hong Kong.  He confirmed that he spoke to Mr Bali, on Waheed’s behalf, to assist Waheed in relation to his case.  He denied that at the Tandoori Nights meeting, he discussed with D1 and D2 whether they could help Waheed.  He denied he had knowledge that D2 knew some of the witnesses in the case against Waheed.  He could not remember if D1 was one of the witnesses.  He confirmed that he knew a person by the name of “Bobby”, whom he saw in the company of D1.  He did not know that “Bobby” was a witness in Waheed’s case.  He denied that he asked D1 and D2 if they could influence “Bobby” to help Waheed when giving evidence.  He explained that when they were together at the Tandoori Nights restaurant, they were chatting with each other and there was no discussion about Waheed’s case. 

31.PW1 agreed that he knew another defendant involved in Waheed’s case called “Vikramjit Singh”.  He also agreed that he saw him and Waheed at Lai Chi Kok Reception Centre.  He denied seeing them for any other reason than to see if they needed some daily necessities.  PW1 said that Waheed requested him to ask Mr Bali to visit them, which he did.[20] 

32.PW1 explained that he knew Waheed in Pakistan for about 5 to 6 years, as they lived in neighbouring villages.  He said Waheed was a general friend, who had worked as a salesman in his mobile telephone shop, but had left his employ prior to the incident, in which Waheed was involved.[21]

33.It was put to PW1 that he fabricated the two blackmail incidents against D1 and D2 in order to protect his former employee, Waheed.  To this suggestion, PW1 said that there was no reason for him to do so, since Waheed had only worked for him for three months and had already left his employment before the blackmail incidents took place.

34.At the end of this evidence, PW1 was shown the CCTV footage relating to the incident at the Hung Kee restaurant on 16 June 2016.  It showed the entrance of the Chungking Mansions where the restaurant was located and he identified himself and PW2, as well as D1.[22] 

The cross-examination of PW2

35.PW2 knew that PW1 had employed Waheed, who worked in PW1’s shop, but knew nothing about the case involving Waheed.  He did not know that D1 was a witness in the case.  He had been told by PW1 that his employee, Waheed, was in Lai Chi Kok and, on one occasion, he accompanied PW1 when he went to see him.  However, he did not see Waheed. 

36.PW2 denied being involved in a plot to have D1 change his evidence in order to exonerate Waheed.

The reasons for verdict

37.The judge in his reasons for verdict found both PW1 and PW2 to be honest and reliable witnesses and accepted their evidence in full.  The judge was of the view that PW1 was unshaken as a witness on all important matters, and his evidence was reasonable and convincing.  He addressed the issues raised by the defence, which he resolved as follows:

“20. Defence submitted that PW1 fabricated evidence to frame up D1 and D2 to help his ex-employee. With respect I disagree. First of all, I see no reason why PW1 would take the trouble and risk to help an ex-employee who only worked for him for 3 months. Secondly, I do not see how by framing up D1 and D2 PW1 could help Waheed. Thirdly, if the ulterior motive is to help Waheed, what was the reason to involve D2 as well? After careful consideration I do not believe PW1 fabricated the two incidents to frame up D1 and D2.

21. I have considered the fact that PW1 had not mentioned clearly about the two blackmail incidents in his first witness statement. After careful consideration, I find his explanation logical and reasonable. I have also considered the fact that at the material times he had some telephone contacts with D2. I do not think the existence of these call records affects the credibility of PW1 and the fact that PW1 had no recollection of these calls does not create any doubt in his evidence. Given the background of the case as testified by PW1, it is not unreasonable that PW1 and D2 would maintain some ongoing contacts.”[23]

38.The judge went on to explain that in respect of PW2, he considered his evidence was succinct, clear and straightforward.  He found that he was unshaken under cross-examination, and that his account was consistent with PW1, except for the inconsistency that he left the restaurant alone rather than together with PW1, as shown on the CCTV footage.  The judge put this down to an innocent mistake by PW2, which did not affect his overall credibility.

39.In his overall assessment of D2’s video-recorded interview, the judge attached full weight to the inculpatory parts, while rejecting the exculpatory parts.

40.In the result, the judge convicted both D1 and D2 of Charge 1, and D1 additionally of Charge 2.

The grounds of appeal

41.At the renewal hearing, the applicants applied for an adjournment, claiming they wished to be legally represented.  D2 said he had spoken to Mr McGowan prior to the renewal hearing about him representing them at the hearing.  Mr McGowan told him to adjourn the proceedings and arrange payment of the fees that had been requested.  However, in the time available, D2 said he was unable to pay the fees.

42.It was noted that D1 and D2 had been put on notice about the hearing for some time, and therefore had ample opportunity to arrange legal representation if they wished to do so.  It was also noted that they had filed a detailed written submission in relation to the grounds of appeal they had previously raised.  The application for an adjournment was refused.

43.The nine grounds of appeal advanced by the applicants in the letter received on 5 September 2019 were as follows:

Ground 1:  The judge erred in finding that PW1 was an honest and reliable witness.

Ground 2:   The judge made a number of factual findings which were inconsistent with the evidence.

Ground 3:   The judge erred in accepting PW1’s explanation why he had not mentioned the alleged blackmails in his first statement to the police.

Ground 4:  The judge erred in accepting PW1’s evidence that Waheed was a former employee of PW1 who had only worked for him for 3 months.

Ground 5:   The overall history of the case showed that PW1 had made a statement or provided information to the police before 25 June 2016 which had not been disclosed to the defence.

Ground 6:   There were other further incidents of non-disclosure by the prosecution.

Ground 7:   The applicants were denied a fair trial because of the incompetence of their counsel. 

Ground 8:  There was evidence and issues of credibility relating to PW1 in another case that was not allowed to be raised in cross-examination.

Ground 9:  The judge erred in finding that PW2 did not know D1 before the incident.

44.At the renewal hearing, D1 and D2 confirmed that they were pursuing the grounds as listed in the letter of 5 September 2019, except for Ground 7, in which they complained that their counsel were flagrantly incompetent in defending them at trial. 

45.We were not surprised that the applicants were not pursuing this ground, as it was soundly rejected by Macrae VP in his leave judgment, having had the benefit of a response from the legal representatives, refuting the claims made by the applicants.[24] In any event, we found the complaints against counsel were without merit.  It was clear that the applicants ran a joint defence at trial and that they had made an informed decision not to give evidence in their own defence.  To a large extent, the abandonment and rejection of this ground exposed the lack of merit in the other grounds of appeal, which were mainly premised on matters that the applicants claimed were not pursued, or pursued properly, by their counsel.  

46.For example, the applicants complained that their counsel failed to establish PW1’s relationship with Waheed; failed to effectively challenge PW1’s evidence that Waheed worked for him for only three months; failed to have played in court the CCTV footage of the Tandoori Nights restaurant on 15 June 2016; failed to have the restaurant manager tendered as a witness; and failed to have Yasir Hussain called as a witness. 

47.There was simply no substance to these complaints. PW1 was extensively cross-examined about his relationship and dealings with Waheed.  It would appear that the CCTV footage was not played because it did not provide clear coverage of the meeting.  Although it would appear the defence did not want to play the CCTV footage because it captured D1 slapping the face of the manager as claimed by PW1.  It was hardly surprising in those circumstances that the restaurant manager was not called.  It would appear that Yasir Hussain was not called because he had returned to Pakistan.  He made a statement to the police essentially supporting PW1’s account of the meeting at the Tandoori Nights restaurant.  However, prior to his departure for Pakistan, he made a declaration, recanting his initial statement.  Nothing further was done about the matter, and it was clear that it was a considered decision by the defence team not to pursue the matter.

48.The remaining grounds of appeal were broken up into three areas.[25] The first concerned the judge’s acceptance of PW1 as an honest and reliable witness.[26]  The second concerned the judge’s factual findings.[27]  The third concerned the alleged non-disclosure of material by the prosecution.[28]  We address each of these areas in turn.

The applicants’ four assertions

49.The written submission of the applicants received on 3 December 2019, set out in a preamble what was said to be “four main facts”.[29]  They are more aptly described as assertions by the applicants. 

50.The first was that PW1 and PW2, together with three others, had met D1 on 23 May 2016 at the Ebenezer Indian restaurant, when PW1 told D1 not to identify Waheed in an identification parade he was to attend on 25 May 2016.[30] PW1 was not cross-examined on this matter, while PW2 was questioned about it.  PW2 had no recollection of any meeting at the Ebenezer Indian restaurant.  He denied that he had been told by PW1 that his attempts to get D1 to settle the matter against Waheed had failed.[31]  No evidence was presented about such a meeting.

51.The second was that PW1 had arranged a meeting with D1 and D2, together with Mr Bali and a person called “James”, both of whom worked in the solicitors firm that represented Waheed at his trial, in order to settle the case with D1.  When PW1 was cross-examined about this matter, he denied it, and no evidence was presented to support this claim. 

52.The third was that D2 was never arrested or charged for the offence of robbery, hence there was no reason for D2 to ask PW1 to give him $800,000 at the meeting on 15 June 2016.  This matter seems to relate to PW1’s evidence that D2 told him at the Tandoori Nights restaurant meeting that a customer of his provided a statement to the police which resulted in his arrest.  PW1 thought the case D2 had mentioned concerned a customer who had been robbed of a gold necklace. 

53.These factual assertions were rejected by either PW1 or PW2 when they were cross-examined in relation to them.  Nor were they supported by any evidence from the applicants.  The judge rejected the defence case that PW1 fabricated his evidence to frame D1 and D2 to help his former employee. 

54.The fourth was that it was never argued at trial whether one or two persons sought to blackmail PW1 at the meeting on 15 June 2016.  As to whether it was one or two persons who sought to blackmail PW1, in relation to Charge 1, D1 and D2 were jointly charged with blackmail of PW1 on 15 June 2016 and it was open to the judge to find one or both or neither of them guilty of the offence.

The acceptance of PW1’s evidence

55.The submission of the applicants against their convictions turned primarily on attacking the credibility of PW1 and bringing into consideration certain matters that arose in two other criminal cases. 

56.The first case is DCCC 89 and 525/2016, which took place before the trial of the present case.[32]  The case involved five defendants, one of whom was Waheed, who was D5 at trial.  The other four (D1 to D4 at trial) were jointly charged with three charges of wounding in relation to three victims on 21 September 2015, one of whom was known as “Bobby” and another was “Happy”, who was D1 in the present case.  D3 was “Vikramjit Singh”. It was alleged that on 19 May 2016, D3 wounded “Bobby”, after D3 together with Waheed threatened him not to testify against the defendants in relation to the wounding charges.  D3 was additionally charged with wounding “Bobby” and jointly charged with Waheed of perverting the course of public justice.

57.In that case, D4 pleaded guilty to the three charges of wounding, whilst the other four defendants were acquitted after trial of the charges they faced because the judge had a reasonable doubt on the evidence.

58.The second case is DCCC 1017 and 1020/2016, which took place after the trial of the present case.[33]  The case involved two defendants who were charged with wounding X (PW1 in the present case) on 18 June 2016.  D2 pleaded guilty to the charge, whilst D1 pleaded not guilty and proceeded to trial.  D1 had been a witness for the prosecution in relation to the charges against D3 and Waheed for the alleged events on 19 May 2016 in DCCC 89 and 525/2016.  X testified at the trial, but the judge found no case to answer because of the weakness of the identification evidence.

59.As a general principle, in appropriate circumstances, evidence that emerges subsequent to trial that is relevant to the credibility of a witness called for the prosecution may be received by an appellate court in its consideration of the safety of the conviction of the applicant.  However, such subsequent evidence should normally be very closely linked to a matter that would materially affect the credit of the witness and call into question the safety of the conviction.  See HKSAR v Rai Rushal, unrep., CACC 118/2013, 29 August 2014, at [16].

60.In an attempt to challenge their convictions, the applicants relied on various matters in these other proceedings, which we did not find had any substance to them at all.  One of the matters that the applicants referred to concerned PW1’s evidence in DCCC 1017 and 1020/2016, in which he said that his first two statements had been translated to him and that he was unable to sign them because of his injuries, whereas in the present case he testified that the first statement had not been read over to him and he had signed it. 

61.PW1’s evidence in the present case about his first statement was not that straightforward.[34] He testified that the statement was taken when he was not feeling well and scared, having been seriously wounded and having undergone surgery.  He gave the statement through a Chinese/English interpreter and an Urdu interpreter.  It appears his niece was present and she read the statement to him.  He said that he had given five statements in all and after the first statement he provided more details.  Whilst his signatures were on the first statement, he explained his hands were fully bandaged, having had both thumbs chopped off, and he put down as a signature that looked like a “W”.  The line of cross-examination of PW1 in relation to his first statement was that he had mentioned the meeting at the Tandoori Nights restaurant, but did not refer to the blackmail demands.  It had been put to PW1 that he did not mention the demands because they had not been made.  The defence were relying on what he had stated, or more precisely what he had not stated, in the first statement.  He explained that he was not in good health after the wounding and scared when he made the first statement.  He added that he provided further details in subsequent statements.  He was also questioned about the fact that the statement had been read over to him.  He responded that the statement had been read to his niece.  The statement recorded that it had been read to him by the interpreter and by his niece.  He was questioned about this discrepancy, to which he explained that his condition was not good and he could not remember.[35] 

62.In the second case, the judge summarised the evidence in his ruling that there was no case to answer.  The applicants referred to the judge’s summary of the evidence that PW1 confirmed that the first statement was translated to him in Urdu and that the content was true and correct.[36]

63.The applicants also relied on a matter raised in the second case, concerning PW1 telling the police that he had seen the second attacker two weeks before the attack on him, notwithstanding he said in his first statement that he did not recognise the other attacker.  PW1 said that he did not tell the police about seeing the second attacker in his first and second statements to the police because he was in hospital and he did not think it was important or did not remember seeing him.  The judge in his ruling considered the circumstances of the attack and the CCTV footage of it and noted that PW1 had a brief opportunity to see the face of the second attacker.  He also noted PW1’s evidence about previously seeing the second attacker.  He concluded that the quality of PW1’s identification of the second attacker was both inherently weak and poor.

64.The applicants contended that the ruling by the judge evidenced PW1’s willingness to give false testimony, even though they acknowledged that the judge had made no express finding that PW1 could not be believed.[37]

65.The applicants also sought to make a comparison between the defence case presented by Waheed in DCCC 89 and 525/2016 with certain aspects of PW1’s testimony in the present case.  The matters referred to mainly concerned the period of Waheed’s employment and relationship with PW1.  PW1 was cross-examined on these matters at some length.[38]  There was no substance to this point.  It was clear that there was no dispute that PW1 and Waheed were friends and that Waheed at one stage worked for PW1.

66.This comparison of the evidence was advanced by the applicants to show that PW1 contradicted himself when giving evidence on oath.[39] We were in disagreement with this analysis.  Not only were the applicants relying on matters that they have not described accurately, but they had been extracted out of context.  As is generally the case, in order to get a sound appreciation of an answer by a witness to a question, it is necessary to have in context the terms of the question and the line of questioning that was being pursued with the witness.

67.The applicants complained that the judge in the present case should not have accepted the evidence of PW1.  It was submitted that aspects of PW1’s evidence were false, contradictory or vague or highly questionable.  In evidence, PW1 rejected the defence case that he arranged D1 and D2 to meet with the legal representatives of Waheed in order to settle the case against Waheed. 

68.There was no question that counsel for the applicants put the defence case to PW1 and PW2.[40]  PW1 was in the witness box for more than two days and extensively cross-examined.  On the other hand, neither of the applicants elected to give or call evidence in order to undermine, contradict or explain the evidence called by the prosecution.

69.It is well recognised that an appellate court would be very slow to interfere with the credibility findings made by a primary judge unless it can be shown that the findings were plainly wrong.[41]  There was no basis to do so in the circumstances of this case. 

70.The applicants contended that PW1 gave dishonest evidence when he said he could not remember about the nature of his telephone communications with Mr Bali and D2.  He was cross-examined extensively about his call records, particularly with respect to D2, which over the period from 10 to 17 June 2016 consisted of 9 calls.[42] Although, it appears during this period he had many calls with other persons as well.  It was an established fact that PW1 and D2 were acquainted and had telephone communications with each other.  It was as a result of a telephone call from D2 to PW1 that PW1 went to the Tandoori Nights restaurant to meet D2.  The judge found it was not unusual that they would have telephone communications with each other, and he accepted PW1’s evidence that he was unable to recall the specific nature of the conversations with D2 in relation to these telephone calls.[43]

71.The applicants contended that PW1 was shown to have given inconsistent evidence about not reading his first statement.  It was recorded in the statement that it had been read over to him.  This was a minor matter given the time and circumstances when the statement was taken from PW1. He was in hospital, having undergone surgery for multiple chop wounds that he sustained after he had been attacked.  He explained that he was under medication and very scared.  In any event, PW1 accepted the contents of his first statement were accurate and reflected what he had told the police at that time.

72.The applicants also complained that the first statement of PW1 was made on 25 June 2016 and yet the police commenced investigating the case before that date, which they contended indicated that PW1 had made a statement before 25 June 2016.  Their main complaint was that this was not raised by their counsel at trial.  It seemed to us for good reason.  First, the wounding of PW1 took place on 18 June 2016 and this would have initiated an investigation.  Secondly, it would have had little or no bearing on the defence case.  PW1 was cross-examined about his statement made on 25 June 2016 and the information he provided to the police.[44]

73.A number of points had been made by the applicants that completely ignored the way the defence case was conducted at trial, which would have been done on their instructions and with their concurrence.  The defence case was focused on challenging the evidence of PW1, who was supported by PW2, on the basis that he was lying about the two blackmail incidents.  It was their case that the meeting on 15 June 2016 had been arranged by PW1 for D1 and D2 to meet with Mr Bali, the legal representative of Waheed, in order to have D2 persuade the victim not to proceed with the charge against Waheed.  PW1 was extensively questioned about his contacts with Mr Bali.  He confirmed that he had contacted Mr Bali to see whether his firm would assist Waheed in his case.  He was further questioned about the nature and number of calls that he had with him as well as the occasions that he visited Waheed while he was in custody.  He explained that he was helping his former employee when he visited him and that he took him basic necessities whilst he was in custody.  It was put to PW1 that Mr Bali was present at the lunch when the applicants were present on 15 June 2016 but he said he came afterwards.  PW1 confirmed on occasions he did speak to Mr Bali about what he was doing in relation to Waheed’s case. 

74.On this issue, we have already set out our observations with respect to Mr Egan’s cross-examination of PW1 about his dealings with Mr Bali.[45] It should also be noted that the firm of solicitors for which Mr Bali worked as a legal executive represented D2 during his trial.[46] 

75.It was complained by the applicants that the CCTV footage of Tandoori Nights restaurant was not played in open court.  This was obviously done for tactical reasons.  Those reasons emerged in the affidavit filed with the court by Mr John Massie, the solicitor for D1.  He stated that the CCTV footage did not cover the whole restaurant and did not provide a full and clear view of D1 and others.  He pointedly added that the only thing it did show was D1 slapping the face of the manager of the restaurant as claimed by PW1.  He stated that it was agreed with D1 that it should not be played in court.[47]

76.We found nothing of substance from this microscopic examination of PW1’s evidence.  Most of the points that were complained about by the applicants were fully ventilated before the judge, who, having had the benefit of seeing and hearing PW1 give evidence, found him to be a credible witness. 

77.The submission of the applicants was no more than a personal critique of the case against them, which in essence was a repeat of the defence case presented at trial. 

78.These grounds of appeal that challenged the judge’s acceptance of PW1’s evidence had no substance to them.

The judge’s factual findings

79.The mistakes that the applicants claimed the judge made were either not made or of no true significance.  This was amply illustrated by examining several of the complaints made by applicants about the judge’s factual findings. 

80.The first complaint was that PW1’s evidence that he had met D2 face-to-face on two or three occasions each for 2 or 3 minutes[48] was incorrectly summarised by the judge as: “D2 sometimes walked past PW1’s mobile phone shop and they would chat casually”.[49]

81.PW1 had testified that he had a mobile telephone shop in Chungking Mansions and on several occasions D2 would come to Chungking Mansions and he would meet him.  He said he had known D2 for several years, which was also confirmed in cross-examination.[50]  It was also established in cross-examination that PW1 had D2’s telephone number and that they had telephone contact with each other.  PW1 had recorded his number under the name “Janga Boss”, which was the name by which he knew D2.[51]  PW1 also testified that he knew “Happy” prior to the incident and that “Happy” would pass by his shop and they would have a chat.  One stage during his testimony, PW1 said that both D1 and D2 would come often to Chungking Mansions.[52] 

82.There was no issue that PW1 knew D1 and D2 and that they had met and chatted with one another prior to the two blackmail incidents.  There was no substance to this complaint.

83.The second complaint was that PW1’s evidence that when he and his friend arrived at the Tandoori Nights restaurant, D1 and D2 were sitting there[53] and later on two or three friends of D2 came, was inaccurately summarised by the judge as: “When they arrived, PW1 saw D2 was already sitting at a table with some men.  He recognized one of the men was D1”.[54]

84.PW1’s evidence was that when he and his friend reached the Tandoori Nights restaurant D1 and D2 were sitting.  He sat down with them at around 11:30 am and they were there until 4:30 pm.  During this period, three to four of D2’s people came and they had lunch.[55]  The other persons left after lunch.  It was not exactly clear when the others came and joined the luncheon but PW1 did say that they came afterwards.[56] 

85.It was accepted that the meeting had taken place. The defence case was that certain others were present at the meeting, including Mr Bali, but PW1 stated that he came afterwards.[57] 

86.Whether the other men were there when PW1 arrived at the restaurant or came later was of little, if any, significance. The defence case was that the meeting in the restaurant was coincidental.  D2 and D1 were in the restaurant with Mr Bali and two others, who were employees of the firm of solicitors, representing Waheed.  PW1 approached D2 and D1 and asked them not to further assist the police in the investigation of the case involving Waheed.  This was denied by PW1 and there was no evidence to support the defence’s contention, except for D2’s video-recorded interview.[58] 

87.The third complaint was that PW1’s evidence that D2 hit a bottle on the table and pointed it at PW1[59] wrongly became, according to the judge: “Upon hearing PW1’s reply, D2 picked up a wine bottle and smashed it against the table.  He pointed the broken bottle at PW1 and said …”[60]

88.After PW1 replied that he did not have the money demanded, D2 hit the bottle on the table and pointed it at him and he became very scared. D2 told him “Unless you arrange the money to pay us, we won’t let you go from here.”[61]

89.The applicants also complained that the judge erred in finding that PW2 did not know D1 before the incident in the Hung Kee restaurant.  PW2 testified that it was the first time he saw D1 at the restaurant.[62]  He was then queried about the reliability of his identification of D1 at the restaurant.  It was noted that in a previous statement he had said that he had seen D1 for around 10 minutes at the restaurant and had also seen him several times inside Chungking Mansions, although he did not know his name, he knew his nickname was “Happy”.  He added that he was able to identify “Happy”.  He was questioned about whether he had seen D1 before the incident but he explained that he learnt of his nickname from others after the incident.[63]  There is no real significance to this point.

90.The matters mentioned by the applicants were of no true significance.  Some involved a minor misdescription of certain factual matters, while others involved a different way of describing the same thing.

91.These grounds of appeal were without merit.

The non-disclosure of material

92.The applicants complained that the prosecution failed to disclose to the defence the notebook entry of DPC 9308, recording his attendance upon PW1 on 23 June 2016, and the police investigation reports, recording that the security at Chungking Mansions told the police on 18 June 2016 that PW1 was the owner of the Hung Kee restaurant and that a female member of staff at the Hung Kee restaurant had told the police on 30 June 2016 that she had not seen PW1 in the last three months.

93.In deciding whether an applicant has been deprived of a fair trial because of the non-disclosure of information or material at trial, the question fundamentally turns on whether the non-disclosure gave rise to a real risk of prejudice to the defence.  The test to be applied by an appellate court when deciding such an issue is whether, taking all the circumstances of the trial into account, there is a real possibility of a different verdict if proper disclosure had been made. 

94.This test has been endorsed by several decisions of this Court.  In HKSAR v Ng Chun To Raymond & Anor [2013] 5 HKC 390, Stock VP (as he then was), giving the judgment of the Court, explained:

“119. We draw the phrase ‘a real risk of prejudice to the offence’ from the judgment of Lord Brown in McInnes v Her Majesty’s Advocate. That was a non-disclosure case in the more usual sense in which non-disclosure arises, namely, of allegedly material statements made to the police by a prosecution witness. It was said by Lord Hope that:

‘A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed. The question at the stage of an appeal is whether, given that there was a failure to disclose having regard to what actually happened at the trial, the trial was nevertheless fair ... The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.’

120. He added:

‘The significance of any infringement of an accused’s art 6(1) Convention rights will depend on the circumstances. As has been said on many occasions, not every infringement of a particular right will mean the accused’s trial as a whole has been unfair. … in a case like the present where the witness … gave evidence, an appellate court will have to assess how the failure by the Crown to disclose various statements which he made to the police actually affected the trial. Of course, an appellant can always argue that, if his advocate had been armed with statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So, in a case like the present, an appellate court will only hold that a trial has been unfair and quash the jury’s verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, the jury might reasonably have come to a different verdict.’” (Citations omitted)

95.The same view was expressed by Macrae JA (as he then was) in HKSAR v Johnson Benjamin [2018] 1 HKLRD 252 who, after an extensive review of the reasoning in McInnes, stressed that when non-disclosure is raised on appeal: “… it is not the mere non-disclosure of the witness’s statement that renders the trial unfair and the verdict suspect: only if there is a real possibility that the verdict might have been different, had the statement been disclosed, will this Court interfere.”[64] 

96.The respondent accepted that the prosecution had not disclosed to the defence prior to the trial that the police had visited PW1 in the hospital on 23 June 2016, which was two days before the first written statement was taken.  The police attendance on PW1 at the hospital was recorded in the notebook of DPC 9308.  It appears that what PW1 had told the police on that occasion was in similar terms to what had been recorded in PW1’s first witness statement taken on 25 June 2016.[65] PW1 testified that when he woke up on about 22 June 2016 he saw two police officers standing beside his bed but did not make a formal statement until 25 June 2016.[66]  The defence were therefore informed of the fact that PW1 had not mentioned the blackmailed demands at the meeting at the Tandoori Nights restaurant, particularly in his first witness statement, and this had been the subject of extensive cross-examination of PW1.  There was no disadvantage to the defence, and clearly this matter would not have resulted in a different verdict. 

97.There was nothing of any significance in the non-disclosure of the two matters complained about, concerning that PW1 was the owner of Hung Kee restaurant and that he had not been recently seen by a particular member of staff at the restaurant.  It was known that PW1 was a restaurant owner and there was CCTV footage of PW1 and PW2 entering the building of the restaurant on 16 June 2016.  The CCTV footage was played in open court which also captured D1 entering the building about one hour later.[67]

98.Whilst it is imperative that the law enforcement authorities ensure that in relation to a criminal trial there is timely and proper disclosure of relevant material to the defence, the matters complained about were of no real significance and did not cause prejudice to the defence to the extent that there was a real possibility that a different verdict may have resulted.

99.This ground of appeal was rejected.

Conclusion

100.For the reasons we have set out above, we refused leave to the applicants to renew their applications and dismissed their appeals.

Mr Johnathan Man, SADPP, and Mr Kelvin Tang, PP of the Department of Justice, for the respondent

The 1^st and 2^nd applicants appeared in person